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[J-93A-C-2012] IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.

COMMONWEALTH OF PENNSYLVANIA, : : Appellant : : : v. : : : JAMEL CLAY, : : Appellee : : : :

No. 3 MAP 2012 Appeal from the Order of the Superior Court entered on May 24, 2011 at No. 1835 EDA 2010 vacating the Judgment of Sentence of the Court of Common Pleas of Chester County, Criminal Division, entered on March 25, 2010 at No. CP-15CR-0001997-2009 and remanding the case

ARGUED: September 12, 2012

COMMONWEALTH OF PENNSYLVANIA, : : Appellant : : : v. : : : JASON SALE CLAYBROOK, : : Appellee : : : :

No. 4 MAP 2012 Appeal from the Order of the Superior Court entered on May 24, 2011 at No. 1926 EDA 2010 vacating the Judgment of Sentence of the Court of Common Pleas of Chester County, Criminal Division, entered on March 25, 2010 at No. CP-15CR-0001998-2009 and remanding the case

ARGUED: September 12, 2012

COMMONWEALTH OF PENNSYLVANIA, : : Appellant : : : v. : : : RASHID LEWIS, : : Appellee : : : :

No. 5 MAP 2012 Appeal from the Order of the Superior Court entered on May 24, 2011 at No. 1762 EDA 2010 vacating the Judgment of Sentence of the Court of Common Pleas of Chester County, Criminal Division, entered on March 25, 2010 at No. CP-15CR-0001996-2009 and remanding the case

ARGUED: September 12, 2012

OPINION

MADAME JUSTICE TODD

DECIDED: February 8, 2013

In this discretionary appeal by the Commonwealth, we consider whether the Superior Court applied an incorrect standard of review with respect to a claim that the verdict was against the weight of the evidence. As we find the Superior Court employed an incorrect standard of review, and erroneously substituted its own conclusions for those of the jury and the trial court, we hold the Superior Court abused its discretion. Accordingly, we reverse and remand this matter to the Superior Court for reconsideration. The relevant background of this matter is as follows. On February 7, 2009, at around 1:30 a.m., Jamel Clay, James Claybrook, and Rashid Lewis (collectively, "Appellees") visited R.B. at her college dormitory in West Chester, Pennsylvania. Upon their arrival at the dormitory, Appellees signed in and provided the security officer with photo identification. Appellees spent the next several hours socializing with R.B. and her friend, H.S., who lived in the same hall. Eventually, at approximately 3:30 a.m., the

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group discussed sleeping arrangements, and, according to Appellees, H.S. invited them to stay in her room. At trial, H.S. testified that Appellees "ended up" in her room

because it was the one nearest to where the group was gathered at the time the socializing concluded, but she did not dispute that she allowed them to stay. There also was testimony at trial that H.S. had engaged in approximately 18 telephone calls with her friend Richard earlier in the evening, during which H.S. informed him that she was planning to allow Appellees to stay in her room, and Richard warned her not to do so. When Claybrook and Lewis first entered H.S.'s room, Lewis sat on her bed and Claybrook sat on H.S.'s roommate's bed. Clay either entered the room at the same time as Claybrook and Lewis, or shortly thereafter. At trial, H.S. testified that she asked Lewis to get off her bed, but he refused, and so she laid down next to him, back to back. H.S. stated that, after five to ten minutes, Lewis attempted to kiss her, and when she said no and attempted to get off the bed, he pulled her towards him, kissed her, and fondled her breasts. H.S. testified that, at some point, she scratched Lewis in an effort to resist him. Lewis testified that, after he sat on H.S.'s bed, H.S. never asked him to get off the bed, and it was she who attempted to kiss him. At some point, after Clay entered the room and laid down in H.S.'s roommate's bed, Claybrook got into H.S.'s bed with H.S. and Lewis. Over the next hour, all three Appellees engaged in vaginal intercourse and oral sex with H.S., some of which involved all three of the men at the same time. H.S. also testified that each of the three men engaged in anal intercourse with her, although both Claybrook and Lewis denied having anal intercourse with H.S. Clay did not testify at trial. The hospital examination revealed ejaculate in H.S.'s rectum. H.S. testified that Appellees initially restrained her, but conceded she was not held down the entire time. Appellees denied restraining H.S. at any time. Midway

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through the incident, Lewis and Clay left the room to obtain more condoms while Claybrook remained in the room with H.S. H.S. testified at trial that, during this time, Claybrook "was forcing me to have oral sex with him. . . . He had his hands on the side of my head and he forced his penis into my mouth." N.T. Trial, 10/26/09, at 162. When asked what kept her from leaving the room at that point, H.S. testified "I was just scared. I was really scared. I didn't know what was going to happen." Id. at 162-63. H.S. further testified that "they were three strangers that I didn't know, and they were forcing me to do these things with them." Id. at 163. When Lewis and Clay returned, they each engaged in further sexual acts with H.S. H.S. testified that, except for the first time she told Lewis "no" when he tried to kiss her, she did not tell Appellees to stop, did not cry out for help, and did not attempt to leave the room. She explained in her trial testimony, when asked why she did not scream, that "[m]ost of the time I had somebody restrained over me, or I had somebod[y's] penis in my mouth." Id. at 165. Thereafter, Appellees indicated they wanted to smoke, but H.S. asked them smoke outside so they would not set off the smoke alarm and get her in trouble. While Appellees were outside smoking, H.S. went down the hall to the bathroom and brushed her teeth. She then returned to her room and left the door open while she changed her sheets and picked up condoms from the floor. Appellees returned to the doorway of H.S.'s room1 and Lewis asked for a clean shirt to wear, as the shirt he was wearing had blood on it. H.S. gave him a clean shirt. Appellees then left, at which point H.S. called her friend Richard and assured him that everything was fine. Several minutes later, however, she sent Richard a text

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There was a dispute at trial as to whether Appellees actually entered H.S.'s room when they returned from smoking, or merely stood in the doorway to her room.

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message telling him that she had lied, that everything was not okay, and that she had been raped. H.S. then told her friend, R.B., that Appellees had raped her. At R.B.'s suggestion, H.S. contacted her Resident Assistant and Resident Director about the incident. The Resident Director reported the incident to campus police on H.S.'s behalf. H.S. then went to the hospital to be examined. Karen Dougherty, a registered nurse in the Crozier Emergency Department, examined H.S. Nurse Dougherty testified that she is a forensic nurse examiner and a sexual assault nurse examiner ("SANE") who had practiced nursing for 30 years and had conducted approximately 200 sexual assault exams. N.T. Trial, 10/27/09, at 484-86. Nurse Dougherty stated that, upon examining H.S., she observed a "suction mark" on her neck, a light scratch on her arm, a small abrasion on her inner elbow, and redness on her inner thighs. Id. at 491. The nurse also noted that H.S. told her she had scratched Lewis in self-defense. Ultimately, Appellees were charged with rape, involuntary deviate sexual intercourse, criminal conspiracy, sexual assault, indecent assault, and false imprisonment. On October 29, 2009, following a three-day joint jury trial before the Honorable James MacElree, at which H.S. testified that she was sexually assaulted by all three appellees, and Claybrook and Lewis testified that the sexual encounters with H.S. were consensual, all three appellees were convicted of sexual assault,2 indecent assault,3 and false imprisonment.4 On March 25, 2010, each Appellee was sentenced to two to four years incarceration and two years consecutive probation. Appellees filed a timely joint motion for post-sentence relief, arguing the evidence was insufficient to sustain their convictions on all of the charges and that the jury's verdicts were against the weight of the evidence.
2 3

18 Pa.C.S.A.

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